Fregia v. St. Clair et al

Filing 9

ORDER DISMISSING CASE WITH LEAVE TO AMEND, signed by Magistrate Judge Sheila K. Oberto on 06/28/17. First Amended Complaint due : (21-Day Deadline) (Attachments: # 1 Amended Complaint Form)(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARK A. FREGIA, 10 Plaintiff, 11 ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. 12 Case No. 1:16-cv-01866-SKO (PC) St. CLARI, et al., (Doc. 1) TWENTY-ONE (21) DAY DEADLINE 13 Defendants. 14 INTRODUCTION 15 16 A. Background 17 Plaintiff, Mark A. Fregia, is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action pursuant to 42 U.S.C. ' 1983. As discussed below, Plaintiff fails to state a 19 cognizable claim upon which relief may be granted and the Complaint is DISMISSED with leave 20 to file a first amended complaint. 21 B. Screening Requirement and Standard 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 24 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 25 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 26 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 27 § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have been 28 paid, the court shall dismiss the case at any time if the court determines that . . . the action or 1 1 2 3 appeal . . . fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). C. Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 4 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 5 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 6 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 7 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 8 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 9 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 10 Violations of Rule 8, at both ends of the spectrum, warrant dismissal. A violation occurs 11 when a pleading says too little -- the baseline threshold of factual and legal allegations required 12 was the central issue in the Iqbal line of cases. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678, 13 129 S.Ct. 1937 (2009). The Rule is also violated, though, when a pleading says too much. 14 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir.2011) (“[W]e 15 have never held -- and we know of no authority supporting the proposition -- that a pleading may 16 be of unlimited length and opacity. Our cases instruct otherwise.”) (citing cases); see also 17 McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.1996) (affirming a dismissal under Rule 8, 18 and recognizing that “[p]rolix, confusing complaints such as the ones plaintiffs filed in this case 19 impose unfair burdens on litigants and judges”). 20 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 21 cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 22 678, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth 23 “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 24 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual allegations are accepted as true, but 25 legal conclusions are not. Iqbal, 556 U.S. at 678; see also Moss v. U.S. Secret Service, 572 F.3d 26 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 27 28 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 1 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 2 However, “the liberal pleading standard . . . applies only to a plaintiff's factual allegations,” 3 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 4 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 5 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 6 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 7 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 8 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 9 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 10 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. Further, “repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short 11 12 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), 13 when the opportunity to correct the pleadings has been afforded and there has been no 14 modification within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108-09 (9th Cir. 15 2013). 16 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 17 possible by simply stating which of his constitutional rights he believes were violated by each 18 defendant and the factual basis for each claim. Plaintiff need not cite legal authority for his 19 claims in a second amended complaint as his factual allegations are accepted as true. The 20 amended complaint should be clearly legible (see Local Rule 130(b)), and double-spaced 21 pursuant to Local Rule 130(c). 22 2. 23 Federal Rule of Civil Procedure 18(a) & 20(a)(2) Federal Rule of Civil Procedure 18(a) allows a party asserting a claim to relief as an 24 original claim, counterclaim, cross-claim, or third-party claim to join, either as independent or as 25 alternate claims, as many claims as the party has against an opposing party. However, Plaintiff 26 may not bring unrelated claims against unrelated parties in a single action. Fed. R. Civ. P. 18(a), 27 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 507 F.3d 605, 28 607 (7th Cir. 2007). Plaintiff may bring a claim against multiple defendants so long as (1) the 3 1 claim(s) arise out of the same transaction or occurrence, or series of transactions and occurrences, 2 and (2) there are commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 3 130 F.3d 1348, 1351 (9th Cir. 1997); Desert Empire Bank v. Insurance Co. of North America, 4 623 F.3d 1371, 1375 (9th Cir. 1980). Only if the defendants are properly joined under Rule 20(a) 5 will the Court review the additional claims to determine if they may be joined under Rule 18(a), 6 which permits the joinder of multiple claims against the same party. 7 The Court must be able to discern a relationship between Plaintiff’s claims or there must 8 be a similarity of parties. The fact that all of Plaintiff’s allegations are based on the same type of 9 constitutional violation (i.e. retaliation by different actors on different dates, under different 10 factual events) does not necessarily make claims related for purposes of Rule 18(a). All claims 11 that do not comply with Rules 18(a) and 20(a)(2) are subject to dismissal. Plaintiff is cautioned 12 that if he fails to elect which category of claims to pursue and his amended complaint sets forth 13 improperly joined claims, the Court will determine which claims should proceed and which 14 claims will be dismissed. Visendi v. Bank of America, N.A., 733 F3d 863, 870-71 (9th Cir. 2013). 15 Whether any claims will be subject to severance by future order will depend on the viability of 16 claims pled in the amended complaint. 17 18 3. Linkage and Causation Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 19 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 20 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 21 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 22 substantive rights, but merely provides a method for vindicating federal rights elsewhere 23 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 24 (citing Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865 (1989)) (internal quotation 25 marks omitted). To state a claim, Plaintiff must allege facts demonstrating the existence of a link, 26 or causal connection, between each defendant’s actions or omissions and a violation of his federal 27 rights. Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); 28 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 4 1 Plaintiff’s allegations must demonstrate that each defendant personally participated in the 2 deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the 3 presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. 4 at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility 5 of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 6 F.3d at 969. Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 7 liberally construed and to have any doubt resolved in their favor. Hebbe, 627 F.3d at 342. 4. 8 9 Exhibits Plaintiff’s Complaint is comprised of six pages of factual allegations followed by 69 pages 10 of exhibits. The Court is not a repository for the parties’ evidence. Originals, or copies of 11 evidence (i.e., prison or medical records, witness affidavits, etc.), need not be submitted until the 12 course of litigation brings the evidence into question (for example, on a motion for summary 13 judgment, at trial, or when requested by the Court). If Plaintiff attaches exhibits to his amended 14 complaint, each exhibit must be specifically referenced. Fed. R. Civ. Pro. 10(c). For example, 15 Plaintiff must state “see Exhibit A” or something similar in order to direct the Court to the 16 specific exhibit Plaintiff is referencing. If the exhibit consists of more than one page, Plaintiff 17 must reference the specific page of the exhibit (i.e. “See Exhibit A, page 3”). 18 At this juncture, the submission of evidence is premature as Plaintiff is only required to 19 state a prima facie claim for relief. For screening purposes, the Court must assume that Plaintiff’s 20 factual allegations are true. It is unnecessary for a plaintiff to submit exhibits in support of the 21 allegations in a complaint. Thus, if Plaintiff chooses to file a first amended complaint, he should 22 simply state the facts upon which he alleges a Defendant has violated his constitutional rights and 23 refrain from submitting exhibits. Further, while it appears that Plaintiff had purely charitable 24 motives for attaching a copy of his book as an exhibit (Doc. 1, pp. 17-75), he should refrain from 25 submissions that are not related to the subject matter of the action. DISCUSSION 26 Plaintiff’s Allegations 27 A. 28 Plaintiff is currently incarcerated at Sierra Conservation Center (“SCC”) in Jamestown, 5 1 California, where the instances he contends violated his civil rights occurred. Plaintiff names the 2 following prison staff as Defendants: SCC Chief Medical Executive (“CME”) J. St. Clair, M.D.; 3 SCC Chief Executive Officer (“CEO”) R. Duncan; and Deputy Director J. Lewis. Plaintiff seeks 4 monetary and injunctive relief. 5 Plaintiff alleges that on March 12, 2015, CME St. Clair denied his inmate appeal (“IA”) at 6 the first level; on June 5, 2015, CEO Duncan denied it at the second level; and Dep. Dir. Lewis 7 denied it at the third level on January 6, 2016. Plaintiff attached copies of IA SCC HC 15011791 8 (“the IA”) to the Complaint. (Doc. 1, pp. 7-16.) In the IA, Plaintiff requested “to be taken off of 9 insulin and testing because [his] hemoglobin AIC level meets the CDCR standard for diabetic 10 (sic) to be treated orally instead of injections, if so desired.” (Id., pp. 7, 9.) Plaintiff indicates that 11 he is aware that, in the past, SCC puts inmates who refuse insulin in suicide cells which he does 12 not want. (Id., p. 9.) 13 For the reasons discussed below, Plaintiff fails to state any cognizable claims. He is, 14 however, provided the applicable legal standards for his stated claims and an opportunity to file 15 an amended complaint. 16 17 B. Legal Standards 1. Deliberate Indifference 18 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 19 prisoner's] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 20 is serious if failure to treat it will result in ‘ “significant injury or the unnecessary and wanton 21 infliction of pain.” ’ ” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 22 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 23 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 24 Cir.1997) (en banc)) 25 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 26 first “show a serious medical need by demonstrating that failure to treat a prisoner=s condition 27 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 28 the plaintiff must show the defendants= response to the need was deliberately indifferent.” 6 1 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 2 (quotation marks omitted)). 3 As to the first prong, indications of a serious medical need “include the existence of an 4 injury that a reasonable doctor or patient would find important and worthy of comment or 5 treatment; the presence of a medical condition that significantly affects an individual’s daily 6 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 7 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 8 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). For screening purposes, Plaintiff’s 9 exposure to asbestos, which resulted in coughing, throat and eye irritation and frequent nose- 10 11 bleeds, is accepted as a serious medical need. As to the second prong, deliberate indifference is “a state of mind more blameworthy than 12 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 13 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 14 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 15 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 16 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 17 prisoner=s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 18 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 19 substantial; however, such would provide additional support for the inmate’s claim that the 20 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 21 F.2d at 1060. 22 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 23 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 24 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 25 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 26 official should have been aware of the risk, but was not, then the official has not violated the 27 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 28 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 7 1 Plaintiff fails to establish that any of the Defendants acted in deliberate indifference to his 2 serious medical need. If anything, Plaintiff’s allegations show that Defendants felt that Plaintiff’s 3 desire to no longer receive insulin would create a substantial risk of serious harm -- which is not 4 cognizable. 5 6 2. Inmate Appeals All of Plaintiff’s claims are based on the handling of his inmate appeal. “[A prison] 7 grievance procedure is a procedural right only, it does not confer any substantive right upon the 8 inmates.” Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 9 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 10 (no liberty interest in processing of appeals because no entitlement to a specific grievance 11 procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance 12 procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 13 1988). “Hence, it does not give rise to a protected liberty interest requiring the procedural 14 protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F. Supp. at 10; 15 Spencer v. Moore, 638 F. Supp. 315, 316 (E.D. Mo. 1986). 16 Actions in reviewing prisoner’s administrative appeal cannot serve as the basis for 17 liability under a ' 1983 action. Buckley, 997 F.2d at 495. The argument that anyone who knows 18 about a violation of the Constitution, and fails to cure it, has violated the Constitution himself is 19 not correct. “Only persons who cause or participate in the violations are responsible. Ruling 20 against a prisoner on an administrative complaint does not cause or contribute to the violation. A 21 guard who stands and watches while another guard beats a prisoner violates the Constitution; a 22 guard who rejects an administrative complaint about a completed act of misconduct does not.” 23 George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) citing Greeno v. Daley, 414 F.3d 645, 24 656-57 (7th Cir.2005); Reed v. McBride, 178 F.3d 849, 851-52 (7th Cir.1999); Vance v. Peters, 25 97 F.3d 987, 992-93 (7th Cir.1996). 26 Thus, since he has neither a liberty interest, nor a substantive right in inmate appeals, 27 Plaintiff fails, and is unable to prove the elements of a constitutional violation purely for the 28 processing and/or reviewing of his inmate appeals. 8 However, Plaintiff may be able to prove the elements for a claim under the Eight 1 2 Amendment for deliberate indifference to his serious medical needs if medical personnel who 3 were involved in reviewing his inmate appeals had both medical training and the authority, but 4 failed, to intercede and/or to take corrective action. If Plaintiff meets his burden of proof as to the 5 elements of a claim against a defendant for deliberate indifference to his serious medical needs, 6 he will likely also be able to meet his burden of proof as to the elements of a claim against 7 defendants with medical training if they reviewed and ruled against Plaintiff in his medical 8 grievances/appeals on that same issue. However, since as discussed above, Plaintiff has not 9 stated a deliberate indifference claim, he cannot proceed against anyone for the handling of his 10 inmate appeal. At least one Appellate Circuit has held that “[o]nce a [non-medical] prison grievance 11 12 examiner becomes aware of potential mistreatment, the Eight Amendment does not require him 13 or her to do more than ‘review [the prisoner’s] complaints and verif[y] with the medical officials 14 that [the prisoner] was receiving treatment.’ ” Greeno, 414 F.3d at 656 citing Spruill v. Gillis, 15 372 F.3d 218, 236 (3rd Cir. 2004) (non-physician defendants cannot “be considered deliberately 16 indifferent simply because they failed to respond directly to the medical complaints of a prisoner 17 who was already being treated by the prison doctor” and if “a prisoner is under the care of 18 medical experts . . . a non-medical prison official will generally be justified in believing that the 19 prisoner is in capable hands.”) This Court concurs with the analysis in Greeno and Spruill. Thus, 20 non-medical prison personnel, and lower medical staff such as CEO Duncan and Dept. Dir. 21 Lewis, cannot be held liable for their involvement in processing and/or ruling on inmate appeals 22 for medical issues where Plaintiff was under the care of a physician for those issues. 3. 23 Violation of Title 15 a. 24 Government Claims Act Under the Government Claims Act (“GCA”),1 set forth in California Government Code 25 26 sections 810 et seq., a plaintiff may not bring a suit for monetary damages against a public 27 1 28 The Government Claims Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 9 1 employee or entity unless the plaintiff first presented the claim to the California Victim 2 Compensation and Government Claims Board (“VCGCB” or “Board”), and the Board acted on 3 the claim, or the time for doing so expired. “The Tort Claims Act requires that any civil 4 complaint for money or damages first be presented to and rejected by the pertinent public entity.” 5 Munoz v. California, 33 Cal.App.4th 1767, 1776, 39 Cal.Rptr.2d 860 (1995). The purpose of this 6 requirement is “to provide the public entity sufficient information to enable it to adequately 7 investigate claims and to settle them, if appropriate, without the expense of litigation.” City of 8 San Jose v. Superior Court, 12 Cal.3d 447, 455, 115 Cal.Rptr. 797 (1974) (citations omitted). 9 Compliance with this “claim presentation requirement” constitutes an element of a cause of action 10 for damages against a public entity or official. State v. Superior Court (Bodde), 32 Cal.4th 1234, 11 1244, 13 Cal.Rptr.3d 534 (2004). Thus, in the state courts, “failure to allege facts demonstrating 12 or excusing compliance with the claim presentation requirement subjects a claim against a public 13 entity to a demurrer for failure to state a cause of action.” Id. at 1239, 13 Cal.Rptr.3d 534 (fn. 14 omitted). 15 Federal courts must similarly require compliance with the GCA for pendant state law 16 claims that seek damages against state public employees or entities. Willis v. Reddin, 418 F.2d 17 702, 704 (9th Cir.1969); Mangold v. California Public Utilities Commission, 67 F.3d 1470, 1477 18 (9th Cir.1995). State tort claims included in a federal action, filed pursuant to 42 U.S.C. § 1983, 19 may proceed only if the claims were first presented to the state in compliance with the claim 20 presentation requirement. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 627 21 (9th Cir.1988); Butler v. Los Angeles County, 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Plaintiff 22 fails to set forth any allegations which show he complied with the GCA so as to be permitted to 23 pursue claims for violation of California law in this action. 24 25 b. No Private Enforcement Plaintiff alleges Defendants violated sections 3351 and 3084.1(d) of Title 15. The 26 existence of such regulations governing the conduct of prison employees and for prosecution of 27 criminal activities does not necessarily entitle Plaintiff to sue civilly to enforce the regulations, for 28 criminal prosecution, or to sue for damages based on their violation. The Court has found no 10 1 authority to support a finding that there is an implied private right of action under Title 15. 2 Where a private right of action has been implied, “‘there was at least a statutory basis for 3 inferring that a civil cause of action of some sort lay in favor of someone.’” Chrysler Corp., 441 4 U.S. at 316 (quoting Cort v. Ash, 422 U.S. 66, 79 (1975)). There is no indication that sections 5 3351 and 3084.1 permit the filing of a civil enforcement action of any kind by Plaintiff. Cort, 6 422 U.S. at 79-80; Keaukaha-Panaewa Cmty. Ass=n v. Hawaiian Homes Comm=n, 739 F.2d 1467, 7 1469-70 (9th Cir. 1984). Given that the statutory language does not support an inference that 8 there is a private right of action, the Court finds that Plaintiff is unable to state any cognizable 9 claims upon which relief may be granted based on the violation of Title 15 regulations. c. 10 Supplemental Jurisdiction Pursuant to 28 U.S.C. ' 1367(a), in any civil action in which the district court has original 11 12 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 13 action within such original jurisdiction that they form part of the same case or controversy under 14 Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power exists under ' 15 1367(a), retention of supplemental jurisdiction over state law claims under 1367(c) is 16 discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000 (9th Cir. 1997). “The district 17 court may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . 18 the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. ' 19 1367(c)(3); Parra v. PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman 20 Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v. 21 Carter, 668 F.3d 1108, 1117-18 (9th Cir. 2012) (even in the presence of cognizable federal 22 claim, district court has discretion to decline supplemental jurisdiction over novel or complex 23 issue of state law of whether criminal statutes give rise to civil liability). The Supreme Court has 24 cautioned that “if the federal claims are dismissed before trial, . . . the state claims should be 25 dismissed as well.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). If 26 Plaintiff has complied with the CTCA, jurisdiction over his claims under California law will only 27 be allowed to proceed in this Court so long as he has pending federal claims. 28 /// 11 1 2 4. Injunctive Relief Plaintiff seeks injunctive relief via medical treatment for various ailments and requests 3 that his housing not be changed in retaliation for filing this suit. However, federal courts are 4 courts of limited jurisdiction, and in considering a request for injunctive relief, the Court is bound 5 by the requirement that as a preliminary matter, it have before it an actual case or controversy. 6 City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665 (1983); Valley Forge 7 Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 8 (1982). If the Court does not have an actual case or controversy before it, it has no power to hear 9 the matter in question. Id. Here, there is no case or controversy before this Court as Plaintiff has 10 not stated any cognizable claims. 11 If Plaintiff eventually states a cognizable claim, he must next establish he has standing to 12 seek preliminary injunctive relief. Summers v. Earth Island Institute, 555 U.S. 488, 493-94, 129 13 S.Ct. 1142, 1149 (2009); Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff 14 “must show that he is under threat of suffering an ‘injury in fact’ that is concrete and 15 particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be 16 fairly traceable to challenged conduct of the defendant; and it must be likely that a favorable 17 judicial decision will prevent or redress the injury.” Summers, 555 U.S. at 493 (citation and 18 quotation marks omitted); Mayfield, 599 F.3d at 969. Requests for prospective relief are limited 19 by 18 U.S.C. ' 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court 20 find the “relief [sought] is narrowly drawn, extends no further than necessary to correct the 21 violation of the Federal right, and is the least intrusive means necessary to correct the violation of 22 the Federal right.” 23 The pendency of this action does not give the Court jurisdiction over prison officials in 24 general or over Plaintiff=s mail issues. Summers, 555 U.S. at 492-93; Mayfield, 599 F.3d at 969. 25 The Court’s jurisdiction is limited to the parties in this action and to the cognizable legal claims 26 upon which this action is proceeding. Id. Thus, the Court does not have jurisdiction to dictate 27 where Plaintiff is housed, or to restrain actions of prison staff. However, if Plaintiff experiences 28 acts he believes amount to retaliation for filing this action, he may seek redress via separate suit. 12 ORDER 1 2 For the reasons set forth above, Plaintiff’s Complaint is dismissed with leave to file a first 3 amended complaint within twenty-one (21) days. If Plaintiff needs an extension of time to 4 comply with this order, Plaintiff shall file a motion seeking an extension of time no later than 5 Twenty-one (21) days from the date of service of this order. 6 Plaintiff must demonstrate in any first amended complaint how the conditions complained 7 of have resulted in a deprivation of Plaintiff’s constitutional rights. See Ellis v. Cassidy, 625 F.2d 8 227 (9th Cir. 1980). The first amended complaint must allege in specific terms how each named 9 defendant is involved. There can be no liability under section 1983 unless there is some 10 affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 11 v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. 12 Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 13 Plaintiff’s first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and 14 plain statement must “give the defendant fair notice of what the . . . claim is and the grounds upon 15 which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 16 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the “[f]actual allegations must be 17 [sufficient] to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. 127, 555 18 (2007) (citations omitted). 19 Plaintiff is further reminded that an amended complaint supercedes the original, Lacey v. 20 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 21 2012) (en banc), and must be “complete in itself without reference to the prior or superceded 22 pleading,” Local Rule 220. 23 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 24 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 25 may not change the nature of this suit by adding new, unrelated claims in his first amended 26 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 27 Based on the foregoing, it is HEREBY ORDERED that: 28 1. Plaintiff’s Complaint is dismissed, with leave to amend; 13 1 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 2 3. Within twenty-one (21) days from the date of service of this order, Plaintiff must 3 file a first amended complaint curing the deficiencies identified by the Court in 4 this order or a notice of voluntary dismissal; and 4. 5 If Plaintiff fails to comply with this order, this action will be dismissed for failure to obey a court order and for failure to state a cognizable claim. 6 7 8 9 10 IT IS SO ORDERED. Dated: June 28, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 .

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